Sense in sentencing
What the justice secretary should do — and what she shouldn’t
Pre-sentence reports are not an indication of the sentence to be passed on an offender, the chair of the Sentencing Council for England and Wales said on Wednesday evening. In a statement issued after the council’s latest guideline on community and custodial sentences had been criticised in parliament, Sir William Davis explained that reports from probation officers simply provided the court with information about the person who was to be sentenced.
“Sentences are decided by the independent judiciary, following sentencing guidelines and taking into account all the circumstances of the individual offence and the individual offender,” Davis added.
Earlier, the shadow justice secretary Robert Jenrick had said the new guideline would make a custodial sentence less likely for those “from an ethnic minority, cultural minority and/or faith minority community”.
He told MPs that this amounted to a “two-tier approach to sentencing”. That was denied by Shabana Mahmood.
Later, the justice secretary made her position clear:
That was followed by her formal letter to the Sentencing Council, which I discuss below. The council is expected to make a further announcement before 1 April, when the revised guideline is due to take effect.
The Sentencing Council was created under the last Labour government by legislation passed in 2009. An authoritative source said its latest guideline could be summarised as telling judges and magistrates: “don’t send offenders to prison unless you really have to”. More formally, the guideline’s aim “is to make sure the courts have the most comprehensive information available about the circumstances of the offender and the offence, and the range of possible sentencing options, so that they can impose a tailored sentence that is the most suitable and appropriate for the offender and offence before them”.
The revised guideline places greater emphasis than before on what the Sentencing Council calls the “critical role of pre-sentence reports in sentencing decisions”. Explaining on Wednesday why the guideline now specifies 10 broad groups or “cohorts”, Davis said:
The reasons for including groups vary but include evidence of disparities in sentencing outcomes, disadvantages faced within the criminal justice system and complexities in circumstances of individual offenders that can only be understood through an assessment.
Old guideline
The current guideline, which dates from 2017, says:
In many cases, a pre-sentence report will be pivotal in helping the court decide whether to impose a community order and, if so, whether particular requirements or combinations of requirements are suitable for an individual offender.
Whenever the court reaches the provisional view that a community order may be appropriate, it should request a pre-sentence report (whether written or verbal) unless the court is of the opinion that a report is unnecessary in all the circumstances of the case.
New guideline
That advice has become almost mandatory in the new guideline. “When considering a community or custodial sentence,” it now says, “the court must request and consider a pre-sentence report before forming an opinion of the sentence, unless it considers that it is unnecessary.”
The guideline adds:
A draft of the guideline was published for consultation in November 2023. That was broadly similar to the final wording. However, the draft says that a pre-sentence report “may be particularly important” if the offender comes within one of the specified categories while the final version says a report “will normally be considered necessary” in those circumstances.
The consultation period ended in February 2024, some months before the general election last year. A junior justice minister responded on behalf of the Conservative government. It’s understood the minister was supportive and did not raise any concerns.
Consultation responses
A summary of the responses published this week says that the list of “cohorts” reproduced above was “one of the sections that garnered the most engagement”:
There were particular concerns about pre-sentence reports (PSRs) for women and ethnic minorities:
Mahmood’s letter
In her letter to the Sentencing Council chair yesterday, Mahmood urged Davis to reconsider the guideline as soon as possible:
This appears to be Mahmood’s first public commitment to a bill she intends to bring forward in the summer. I have more to say about the sentencing legislation and its timing in my column for today’s Law Society Gazette.
Limiting jury trial
Mahmood outlined the details of her legislative options in the Commons on Wednesday. Referring to the review of the criminal courts being carried out by Sir Brian Leveson, the justice secretary said:
Today, 10% of criminal cases are heard in a Crown Court, where a judge presides and a jury decides. Jury trials are a pillar of our justice system for the most serious offences and that will never change. However, we must ask ourselves whether they are hearing cases that could be handled equally well elsewhere.
Some cases can already be heard in either a Crown Court or a magistrates’ court, which we call “triable either way” cases. Those represent 40% of the courts backlog, but while a conviction — whether determined by a jury or a magistrate — is the same regardless of the type of courtroom, the demand that it places on our justice system is very different indeed. An either-way case is resolved by magistrates five times faster than before a judge and jury.
Justice must be done and criminals must always face consequences — on that, I know this house will agree — but we must be willing to ask whether a judge and jury should be occupied, at great length and expense, with crimes that could be dealt with more swiftly elsewhere.
For that reason, I have asked Sir Brian to consider the case for reclassifying some less serious offences; whether magistrates’ sentencing powers are sufficient; and the case for a new court to sit between the magistrates court and the Crown Court. His recommendations will come later this spring.
One idea Mahmood is floating here is that defendants should no longer be able to insist on jury trial for crimes that can be tried either by magistrates or in the Crown Court. That includes offences such as theft, assault occasioning actual bodily harm and damaging property.
Reclassifying some less serious offences would also mean withdrawing the right to jury trial in those cases. And so would creating an intermediate court — perhaps comprising a judge and two magistrates — that could hear cases currently tried by a judge and jury.
Comment
Limiting the availability of jury trial is the only effective solution to bringing down the backlog of cases awaiting trial in the Crown Court. Of course, the current delays of two or three years are also leading to attrition because witnesses become unavailable — but in those circumstances defendants may simply be acquitted.
Reviewing the role of the Sentencing Council is not, in itself, unreasonable. But Mahmood’s letter goes rather further:
Threatening to emasculate the Sentencing Council because of one sentence in one guideline that Mahmood could have objected to before it was agreed is surely an overreaction.
She has been justice secretary for the past eight months. During that time, the Sentencing Council must have had a number of meetings to discuss the consultation responses and approve the new guideline. The Ministry of Justice had a representative present at each of those meetings. I’m told that officials did not alert ministers to any concerns before the new guideline was published this week. But that was presumably because they believed it to be in line with Mahmood’s sentencing aims.
There is nothing fundamentally different in the new guideline. The previous guidance, though not as detailed, made it perfectly plain that a custodial sentence was to be imposed only when the offence was so serious that a community sentence could not be justified. And even if a custodial sentence was justified, the guidance added, sentencers should consider suspending it. The new guideline is intended help judges and magistrates keep those principles at the forefront of their minds.
“We have to make sure there’s consistency of sentencing,” the Sentencing Council chair told me in October. “It’s a very important feature of our function to make sure that if you’re convicted of a crime in Barnstable you’ll get something approaching the same sort of sentence as you would if you were convicted in Bolton.”
Ultimately, though, sentencing is a matter for the sentencers. By law, “every court must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case… unless the court is satisfied that it would be contrary to the interests of justice to do so”. The guidelines are authoritative but not binding.
You might have thought that a justice secretary whose search for an answer to the prisons crisis took her as far as Texas last month would have supported a body that brings sense to sentencing. A better briefed minister would have told her Conservative shadow that well-informed sentencers pass more effective sentences.
What lessons has Mahmood learned from her trip? And what can we expect from her sentencing bill? That’s the subject of my latest column for the Law Society Gazette.
Update 11 March: Davis has sent a robust six-page reply to Mahmood and published it in full. Here are some extracts:
The consultation responses in relation to pre-sentence reports were discussed at meetings of the [Sentencing] Council in May and June 2024. The council discussed the suggestion that there should be no list of particular cohorts. It was decided that to remove the list would have been contrary to the majority view expressed by consultees. It would have departed from the views expressed by the statutory consultees, the lord chancellor and the justice committee…
At no stage did the lord chancellor’s representative express any concern or reservation about the term now under debate. The walk through of the guideline with officials from the Ministry of Justice took place on Monday 3 March…
I am aware that in some quarters there has been an eliding of the obtaining of a pre-sentence report and the sentence imposed. This is a confusion of two separate steps in the sentencing process. I have seen it suggested that the guideline instructs sentencers to impose a more lenient sentence on those from ethnic minorities than white offenders. Plainly that suggestion is completely wrong as I hope I made clear in my public statement published on the afternoon of 5 March 2025 on the council website following comments reported in the media.
You will be aware of your power under section 124(1) of the Coroners and Justice Act 2009 to propose to the Council that sentencing guidelines be prepared or revised by the council under section 120 in relation to a particular offence, particular category of offence or particular category of offenders, or in relation to a particular matter affecting sentencing. This is not a power which ever has been used to ask the council to revise a guideline immediately after it has been published and which has been the subject of detailed consultation with the lord chancellor. I shall have to take legal advice as to whether the power under section 124(1) applies in those circumstances. If it does, the issue will be considered at the next meeting of the council.
However, for all the reasons I have given, I do not accept the premise of your objection to the relevant part of the list of cohorts for whom a pre-sentence report will normally be considered necessary.
The second part of your letter indicates that you will be considering whether “policy decisions of such import” should be made by the Sentencing Council. You will consider what role ministers and parliament should play. I respectfully question whether the inclusion of a list of cohorts in the imposition guideline was a policy decision of any significance. However, whatever the import of the decision, it related to an issue of sentencing…
In criminal proceedings where the offender is the subject of prosecution by the state, the state should not determine the sentence imposed on an individual offender. If sentencing guidelines of whatever kind were to be dictated in any way by ministers of the crown, this principle would be breached.
I don't like making political statements, and this is not a party political statement, but you do wonder what the regulators make of Jenrick's increasingly irritating pronouncements. The regulators have previously disciplined non-practising solicitors and barristers for making misleading statements, and yet he seems to get away with almost constantly. I presume it's because it would make it look like they are interfering in politics, but it is getting a problem. The problem of successive Lord Chancellor's not defending the judiciary is well-known, but MPs should not do this, and certainly not deliberately. Jenrick deliberately links this to Starmer personally when he knows that the Sentencing Council is independent and if, as you say, the previous government did not object, then it is even worse.
That said, I do think the Sentencing Council have not considered the optics here. The better approach would have been to mandate PSRs where a likely sentence is under two years' imprisonment. That would mean that non-custodial options are considered, and the PSR could specifically address whether to suspend the sentence. In my experience, Magistrates' nearly always ask for a PSR when considering custody because they are advised to do so, but you could easily say that all judges and magistrates' must when the likely sentence is capable of being suspended or is on the custody threshold.
In terms of the intermediate court, this does appear increasingly likely. It will be interesting to see what powers it will have (again, a likely sentence under two years' would take out a good chunk of work from the Crown Court, three even more) and how people will react. Reclassifying matters as summary is politically sensitive because eventually the press will work out that you have just reduced the maximum sentence, sometimes significantly (as the maximum sentence would be 12 months). That is a much further step than, for example, trying (again) to remove the right to elect summary trial, leaving it to the magistrates' to decide whether the trial should be summary or not. To my mind, that could only be justified if you also precluded committal for sentence. It seems to me that if you cannot have the 'benefits' of a Crown Court trial, you should not be expected to suffer the powers of the Crown Court.
You might think that a Justice Secretary from an ethnic minority faced with a prison overcrowding crisis would welcome any guidance that might lessen the pressure on the prison population and which might also reduce disparities in imprisonment rates. Mahmood’s protest that she and her colleagues did not consent to this change is disingenuous. She should have the courage to slap down the opportunistic and hypocritical challenge from Jenrick.